Moss v Badke
[2019] ACTSC 186
•12 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Moss v Badke |
Citation: | [2019] ACTSC 186 |
Hearing Date: | 12 July 2019 |
DecisionDate: | 12 July 2019 |
Before: | Robinson AJ |
Decision: | Trial date vacated, cost reserved. |
Catchwords: | PRACTICE AND PROCEDURE – COSTS – Application for adjournment – Where the plaintiff was incommunicado – Whether the plaintiff should pay the costs of the application and costs thrown away – Whether the plaintiff’s non-communication is related to his injury from the accident – Cost reserved |
Parties: | Kostino Moss (Plaintiff) Gail Badke (First Defendant) Insurance Australia Ltd t/as NRMA Insurance (Second Defendant) |
Representation: | Counsel A Muller (Plaintiff) J Pappas (Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Sparke Helmore (Defendants) | |
File Number: | SC 395 of 2018 |
Robinson AJ
The plaintiff in these proceedings, Mr Moss, moves the court for an order that the hearing of the matter, which is currently listed to commence on 22 July 2019, be vacated and that a new date be fixed for the hearing.
The accident to which the proceeding is concerned occurred on 14 April 2015, when the plaintiff suffered physical injuries and also, it seems, mental health issues. It is an issue in the case to what extent these mental health issues are due to the accident or connected to the impact of the accident.
Liability is admitted in these proceedings and so there is no apparent reason why the plaintiff would not expeditiously prosecute his proceedings.
The matter was fixed for hearing by the registrar on 14 March 2019. This date was chosen for the hearing and had the consent of all parties.
The affidavit in support of the application is sworn by the plaintiff's solicitor, James Lucas Madden, and he recites a large number of attempts to contact the plaintiff from 26 March 2019 until the filing of the present application on 9 July 2019.
Today, I have been told from the bar table that subsequent to the filing and swearing of that affidavit, there has been one contact with the plaintiff. It is not clear that that contact will, in fact, amount to anything of significance for these proceedings at this time. All of the attempts to contact the plaintiff in the period of 26 March 2019 until 9 July 2019 were unsuccessful.
It is not clear to me that thoughtful and material inquiries were made of the plaintiff in that period of time. However, for present purposes, that does not seem to matter.
I interpolate to note that an unusual aspect of this application is that the solicitor does not hold explicit instructions to make this application. The application has been filed, so it is said, on implied instructions to act in the best interests of the client.
The adjournment of the hearing is not opposed by counsel for the defendants. Indeed, it is common ground between the parties that, having regard to the state of preparation for the hearing, the case should not proceed.
What is at issue is who should pay the costs of this application and the costs thrown away by reason of the vacation of the trial date.
I propose to vacate the hearing date as sought. I do this on the basis that it is highly unlikely that a satisfactory trial can now be held on 22 July 2019. It is in the parties' interests and also in the court's interests that this date will be vacated and thereby allow the court to reallocate its resources in a manner most likely to do justice not only between these parties but also as between other litigants.
I would normally require the plaintiff to pay the costs of this application and the costs thrown away. However, before doing so, I would wish to ascertain information as to whether the plaintiff's mental state or mental health issues are involved in his non-communication with his solicitor.
There is a chance that this non-communication may be related to the accident itself. I, of course, make no such finding at this time. Indeed, there is no information before the court as to why the plaintiff has not communicated with his solicitor.
In the circumstances of this case, I will reserve the costs of both the application and of the costs thrown away by reason of the vacation of the trial date.
I do so only because there is a lack of information presently available as to why the plaintiff has failed to communicate with his solicitor. It is not clear to me what other issue may arise that would save the plaintiff from paying the above costs, owing to his responsibility for the adjournment.
The orders that I will make are as follows.
(a) The hearing date of 22 July 2019 be vacated.
(b) Liberty granted to apply to the list clerk to have this matter set down at a future date.
(c) The costs of this application and the costs thrown away by reason of the above vacation of the hearing date are reserved.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: |
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